Traditional Knowledge: Cultural Heritage or Intellectual Property Right?

The value of Traditional Knowledge (TK) as belonging to the cultural heritage of mankind has been officially recognized as an instrument which guarantees biological diversity and the identity of indigenous and local communities. Hence, the system of human rights protection can be extended to TK. However, it is also necessary to understand the interaction with intellectual property rights (IPRs) - patents and trade-marks above all- that could be invoked to grant profits in case of commodification or misappropriation of traditional skills and practices. The point has not been adequately considered at the level of international law. The main reason for this is the absence of general agreement on core questions concerning the implementation of the 1992 UN Convention on Biological Diversity (CBD) principles, and on the interpretation of relevant rules of the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPs). Giving TK priority as a form of cultural heritage over IPRs may conflict with the TRIPs Agreement and the prevailing view of most industrialized countries. The rules adopted by some GR-provider states to protect TK, though highly fragmentary and diversified, suggest that the way towards building an international intellectual property (IP) title should be found outside the framework of TRIPs. The provisions relating to TK in some bilateral trade and investment agreements seem to support that hypothesis.